Citation Nr: 1525797
Decision Date: 06/16/15 Archive Date: 06/26/15
DOCKET NO. 12-00 268A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to service connection for right knee advanced tricompartmental degenerative joint disease (DJD), to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar.
2. Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
The Veteran and his son
ATTORNEY FOR THE BOARD
Bonnie Yoon, Associate Counsel
INTRODUCTION
The Veteran served on active duty with the United States Army from December 1954 to November 1956.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
The matter was previously before the Board in July 2014, where it was remanded for further development. While the case was on remand, the Appeals Management Center (AMC), in a January 2015 rating decision, granted service connection for bilateral hearing loss. Because the grant of service connection was a full grant of the benefit sought on appeal, that issue is no longer before the Board. The remaining issues have been returned to the Board for further appellate review.
The Veteran testified at a June 2014 hearing held via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is associated with electronic records maintained in the Virtual VA system.
The Board has reviewed the Veteran's electronic claims file maintained in the Veterans Benefits Management System (VBMS) and the records in the Virtual VA system to ensure consideration of the totality of the evidence.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a) (2) (West 2014).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
While the Board sincerely regrets the additional delay, a remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
The July 2014 remand indicated that since the Veteran's service records were likely destroyed in a fire at the National Archives and Records Administration on July 12, 1973. The remand directed that additional attempts to secure all available alternative service treatment records be made, and that efforts to obtain these records should continue until it is determined that the records sought do not exist or that further efforts to obtain same would be futile. If so determined, then it was directed that a written formal finding of unavailability should be made, and appropriate notice under 38 C.F.R. § 3.159(e) be provided to the Veteran. In October 2014, a Personal Information Exchange System (PIES) request was made for the Veteran's complete service treatment and personnel records. In January 2015, a response was received, indicating that all available personnel documents were provided, and that no service treatment records were recovered from the fire, and there were no Surgeon General Office (SGO) records available. However, no written formal finding of unavailability was made, and appropriate notice under 38 C.F.R. § 3.159(e) was not provided to the Veteran. This should be rectified on remand.
Also, the July 2014 remand directed that the Veteran be afforded a VA joints examination and a VA spine examination in order to determine the etiology of the Veteran's right knee and low back disabilities. The Veteran was afforded VA examinations in November 2014. The same examiner conducted both examinations. The examiner found that the claimed conditions were less likely than not proximately due to or the result of the Veteran's service-connected left knee condition, and less likely than not aggravated beyond its natural progression by the service-connected left knee condition. The examiner stated that while the Veteran uses a walker and has a stooped posture, there was no history or record indicating altered biomechanics, the "mechanism by which left knee pathology could cause right knee pathology," so therefore the right knee pathology was less likely than not caused or aggravated by the left knee pathology. Also, since there was no history or record indicating altered biomechanics, "the mechanism by which left knee pathology could aggravate right knee pathology, therefore there is no aggravation." Regarding the spine, the examiner stated that the Veteran had degenerative changes of his spine which were a natural part of aging and not caused by knee pathology nor specific injuries in the past, and there was no history or record indicating altered biomechanics, the "mechanism by which left knee pathology could contribute in some way to back pathology," so therefore the back pathology was less likely than not caused or aggravated by the left knee pathology. Also, since there was no history or record indicating altered biomechanics, "the mechanism by which left knee pathology might aggravate back pathology, therefore, there is no aggravation."
However, the examiner's rationales for his opinions are inadequate. The examiner stated repeatedly that there was no indication of altered biomechanics, which he described as the mechanism by which left knee pathology "could cause," "could contribute in some way to," and "might aggravate" right knee pathology and back pathology. Such statements are vague and speculative, and the examiner provided no other rationale or supporting data to support his conclusions. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (noting that the use of the term "could," without other rationale or supporting data, is speculative).
In addition, the examiner did not address the Veteran's lay statements regarding having to favor his left knee, causing more weight-bearing and eventual deterioration of his right knee. The examiner also did not address the Veteran's lay statements regarding developing back problems due to walking with his hips at a different angle when favoring his left knee. The examiner also did not address the testimony of the Veteran's son at the June 2014 Board hearing, where he testified that he has seen his father walk with a limp "ever since I can recall back as a kid."
In light of the foregoing, the Board finds that the November 2014 VA examinations are inadequate. New examinations are necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced).
Finally, as the case is being remanded, all updated VA treatment records should be obtained and associated with the claims file.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)
1. Issue a written formal finding of unavailability of the Veteran's service treatment records. Provide the Veteran appropriate notice under 38 C.F.R. § 3.159(e) regarding the unavailability of the service treatment records.
2. Obtain updated complete VA treatment records from the VA medical center in Houston, Texas, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, from December 2014 to the present.
3. Schedule the Veteran for a VA joints examination, with an orthopedic specialist/physician, to determine the nature and etiology of his right knee disability. The entire claims file must be reviewed by the examiner in conjunction with the examination, and the examiner must indicate in the report that the claims file was reviewed. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed right knee disability a) is related to the Veteran's service; or was b) caused or aggravated (permanently increased in severity) by the Veteran's service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar.
The examiner MUST explain the rationale for the opinion given. In providing a rationale, the examiner should cite to the medical and competent lay evidence of record, including the VA treatment records, and the Veteran's lay statements regarding the etiology of his right knee condition, included in statements submitted by the Veteran and in the June 2014 Board hearing transcript. The examiner should also address the statements of the Veteran's son at the June 2014 hearing.
4. Schedule the Veteran for a VA spine examination, with an orthopedic specialist/physician, to determine the nature and etiology of his low back disability. The entire claims file must be reviewed by the examiner in conjunction with the examination, and the examiner must indicate in the report that the claims file was reviewed. Any testing deemed warranted should be accomplished. All indicated tests and studies should be performed.
The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed back disability a) is related to the Veteran's service; or was b) caused or aggravated (permanently increased in severity) by the Veteran's service-connected left knee severe tricompartmental DJD with effusion, pseudo laxity, and scar.
The examiner MUST explain the rationale for the opinion given. In providing a rationale, the examiner should cite to the medical and competent lay evidence of record, including the VA treatment records, and the Veteran's lay statements regarding the etiology of his back condition, included in statements submitted by the Veteran and in the June 2014 Board hearing transcript. The examiner should also address the statements of the Veteran's son at the June 2014 hearing.
5. After undertaking any other development deemed appropriate, the RO should readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded an opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).